United States v. Molina-Santillan

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50419
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL MOLINA-SANTILLAN,
Defendant-Appellant
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-99-CR-1561-1-H
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Gabriel Molina-Santillan argues that 8 U.S.C. § 1326(b) was
unconstitutionally applied at his sentencing because he received
an enhanced sentence based on a prior conviction that was not
alleged in his indictment, which deprived him of his Sixth
Amendment right to a jury trial on all the elements of his
offense. Molina also argues that the sentence imposed violated
due process because it exceeded the maximum statutory penalty for
the offense charged in the indictment.

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No. 00-50419
-2-
Molina concedes that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for possible Supreme Court review in
light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348
(2000). He also acknowledges that he did not raise his arguments
in the district court and, thus, review for plain error is
appropriate. Apprendi did not overrule Almendarez-Torres. See
Apprendi, 120 S.Ct. at 2361-62 & n.15; see also United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), petition for cert.
filed, (U.S. Jan. 26, 2001)(No. 00-8299); United States v.
Doggett, 230 F.3d 160, 166 (5th Cir. 2000), petition for cert.
filed, (U.S. Jan. 4, 2001) (No. 00-7819).
As Molina’s arguments for appeal are foreclosed, he has
failed to show that the district court committed error, plain or
otherwise, in imposing sentence. Molina’s judgment of conviction
is AFFIRMED.

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